Quick thread on the question of a review clause to the backstop, which raised the temperature in the Dail today:
1. The question is, what will be under review? There are currently different backstop models that are being discussed by negotiators in the "tunnel"
1. The question is, what will be under review? There are currently different backstop models that are being discussed by negotiators in the "tunnel"
2. There's the UK-wide customs arrangement, which wd be fully fleshed out during the transition, and the NI-specific backstop. London wants the former only, with add-ons to cater for single mkt regulatory compliance for NI, while Dublin wants the latter "unless + until" etc
3. It's still not clear if there will be both options, if they will be "conjoined", or if the NI-specific sits as the ultimate failsafe of no hard border underneath the other architecture. That means you have to decide which formulation it is before deciding on what is "reviewed"
4. It seems clear that along the way there will be "decision points". When will the UK-wide customs arrangement be agreed? At the end of 2020? Later? These decision points will certainly be quasi reviews.
5. If the formulation of the Joint Report is that the backstop only comes into effect if "other solutions" do not work, then that implies a review to conclude that those other solutions haven't, indeed, worked.
6. If and when the future FTA is agreed, it will have to be tested as to whether it obviates the need for any customs or regulatory checks on the Irish border - again, that is a review.
7. In terms of an arbitration panel that might decide whether one, or both, of the backstops gets superseded, it's unlikely that the EU will accept any panel that makes a binding ruling on a matter of EU law. In other words, all of the single market acquis that might apply in NI.
8. So any arbitration would likely be limited to something relating to the customs element of the UK-wide backstop (the EU-Turkey customs union has a three person aribtration panel).
9. In any event, all these issues - review clauses, exit clauses, arbitration - have been kicking around the tunnel in the run up to the European Council, so they are not new ideas. Which one is agreed upon is where the politics lie.
